GOULBOURNE v. STATE, NO. 5192 CRB-2-06-12 (2-26-2008)

CORDELL N. GOULBOURNE, CLAIMANT-APPELLANT v. STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION, EMPLOYER, SELF-INSURED, RESPONDENT-APPELLEE and GAB ROBINS OF NORTH AMERICA, ADMINISTRATOR

CASE NO. 5192 CRB-2-06-12 CLAIM NO. 100137043CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
FEBRUARY 26, 2008

ERRATA SHEET
Please replace page seven of the Compensation Review Board’s Opinion dated January 17, 2008 with the attached page seven.

John A. Mastropietro, Chairman Compensation Review Board Workers’ Compensation Commission

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Seaport Museum, Inc., 252 Conn. 596 (2000). In Russell the Supreme Court pointed out that § 31-275(16)(A) C.G.S. clearly provides for compensating workers who suffer “repetitive trauma or repetitive acts incident to such employment. . . .” id., 606, but “[t]he act is silent as to the notice requirements for the third type of personal injury defined by § 31-275(16)(A), namely, repetitive trauma injuries.” Id., 608. Citing Discuillo, supra, the Court in Russell restated the principle “the process of injury from a repetitive trauma is ongoing until [the last date of exposure].” Id., 613.

The Discuillo case also dealt with the issue of “last day of exposure,” concluding “the last date of exposure to the relevant trauma is a logical choice” for determining when the time limitations to file a claim commence Id., 581, n. 11. The Supreme Court also made clear that last date of employment did not necessarily equate to the last day of exposure.[4] In that specific case it did not matter, as “the plaintiff never returned to work after his heart attack . . . the date of his heart attack is also the date of his last exposure to the relevant stresses.” Id., 583. Mr. Discuillo’s position that he did not have scienter until years later did not save an untimely claim for repetitive trauma.[5]

The critical error in the respondent’s argument in this matter is that they appear to conflate the jurisdictional standards applied in cases involving § 7-433c C.G.S. with the jurisdictional standards for commencing a repetitive trauma claim.[6] We have rejected

[4] Further support for the “last day of exposure” standard in repetitive trauma cases may be found in Sanford v. Clinton PublicSchools, 3446 CRB-3-96-10 (March 5, 1998), aff’d, 54 Conn. App. 266
(1999), cert. denied, 251 Conn. 917 (1999) and Borent v. State, 33 Conn. App. 495
(1994). The “last day of employment” standard was specifically rejected in Knapp v. New London, 44 Conn. App. 465 (1997), which notwithstanding the inference in Respondent’s Supplemental Brief, p. 7, was not decided on a “technicality.” Obviously, whether a claimant continued to be exposed to a specific trauma up to his last day of employment is a matter which must be determined by the trial commissioner in his findings of fact.

[5] The concept of scienter as triggering the obligation to file a claim has been retained for occupational diseases, but as we pointed out in Chappell, supra, a claimant asserting an occupational disease claim bears the burden of proving a coronary disease was peculiar to his profession, citing Discuillo, supra.

[6] Respondent also appears to argue that we should overturn decades of precedent applying the standard of “last date of exposure” because the General Assembly has not adopted a specific legislative standard for repetitive trauma claims. Respondent’s Supplemental Brief, p. 7. This argument ignores the doctrine of

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